2000SCMR219 (PLP)

SH. IJAZ NISAR, J.

This petition is directed against the judgment dated 11-7-1997 passed by the Lahore High Court, Lahore, in R.S.A. No.266 of 1969.

2. The dispute in this case relates to "Warabandi" of "Moga" No. 11017/1- Rajbah Dhudhi minor, Chak No. 215/RB, Hafizabad Division, Lyallpur sanctioned on 3-4-1965. The petitioner filed a declararatory suit seeking declaration that the Warabandi was illegal, void and liable to be set aside. The grievance of the petitioners in the suit was that the respondents never prayed in their application submitted before the Canal Authorities that the Nikal water he sanctioned to them, and thus, the DCO was not empowered to sanction the same. The suit was contested by the respondents. The learned trial Court after framing the issues and hearing the parties, dismissed the suit on 10-2-1968.

3. Feeling aggrieved, Hasham deceased etc., the petitioners, filed an appeal, which was accepted by the learned District Judge vide judgment dated 17-3-1969. The learned District Judge observed that the DCO went beyond his jurisdiction in sanctioning the Nikal water, as there was no dispute about it between the parties.

4. Feeling dissatisfied, Ameer deceased etc., respondents filed a second appeal in the Lahore High Court, which was accepted on 11-7-1997 and decree of the Lower Appellate Court was set aside hence, this petition by the legal representatives of Hasham deceased petitioner.

5. It is contended that as per instructions, the Nikal water was given to the petitioner in 1931 and 1962, which order was not challenged, and thus, attained finality. In the absence of any dispute regarding Nilal water, the DCO was not justified to cause any amendment in the Nikal water. It is further mentioned that since the petitioners land was located at the tale of the Rajbah, therefore, they were the only persons who were entitled to the Nikal water.

6. Admittedly, Nikal water is the right of the person whose turn of water is last of all from the main watercourse. The learned trial Court, after making a perusal of the revenue manual of the irrigation branch and the other relevant factors, came to the conclusion that since a dispute had arisen among the shareholders of the outlet in dispute, therefore, the DCO was competent to amend the Warabandi under section 68 of the Canal and Drainage Act, and he rightly found the respondents entitled to the Nikal water. According to the learned Civil Judge, all the shareholders, except Hasham deceased, were satisfied with the order of the DCO declaring it to be valid and in accordance with law.

7. The learned High Court upheld the judgment of the Civil Court after taking stock of all the relevant considerations, paragraph 9 of the impugned judgment may be advantageously re-produced below to show the reasoning given by the learned Single Judge in support of the judgment of the learned trial Court:-- "From the above discussion I feel no hesitation in holding that the dispute of Nikal water cannot be treated as independent proceedings as the same is part of Warabandi and every shareholder in Moga has right to get his dispute settled by way of making application under section 68 of the Canal and Drainage Act. If the DCO after conducting inquiry comes to the conclusion that some modifications required in ' Warabundi' he can certainly pass an appropriate order allocating share in Nikal water also. The dispute about the distribution of Nikul water can be decided by the Divisional Canal Officer at the time of preparation or modification of Warabndi as the same are not independent proceedings and very much connected with the ' Warabandi' . Thus, the order passed by DCO in the given circumstances cannot be declared as illegal and void. However, as I have observed above, the Civil Courts are competent to` examine the vires of any order passed by the DCO and if found illegal or void it can be declared as such by them."

8. Learned counsel for the petitioners has failed to satisfy us that any illegality was committed by the learned Trial Court in approving the amended Warbandi made by the DCO under section 68 of the Canal and Drainage Act.

9. For the reasons stated above, we find no substance in this petition which is hereby dismissed. H.B.T./H-34/S Petition dismissed.